United States v. Mathews, Presse D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1665
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PRESSE D. MATHEWS, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20028—Michael P. McCuskey, Chief Judge.
____________
ARGUED APRIL 10, 2006—DECIDED JULY 7, 2006
____________
Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Presse Mathews, Jr. pleaded guilty
to possession of a firearm by a felon, see 18 U.S.C.
§ 922(g)(1). The district court determined that he previously
had committed three violent felonies and, as a re-
sult, sentenced him under the Armed Career Criminal
Act, see id. § 924(e)(1). In this appeal, Mr. Mathews contends
that one of these prior felonies should not have been
classified as “violent” based upon the information available
to the court at sentencing. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
2 No. 05-1665
I
BACKGROUND
On May 5, 2004, a federal grand jury indicted Mr.
Mathews on the charge of possession of a firearm by a felon.
See 18 U.S.C. § 922(g)(1). After an unsuccessful motion to
suppress the handgun found in his possession, Mr.
Mathews pleaded guilty. As his case moved into the
sentencing phase, the United States Probation Office
prepared a presentence report recommending that Mr.
Mathews be sentenced under 18 U.S.C. § 924(e)(1). That
provision, known as the Armed Career Criminal Act
(“ACCA”), mandates a fifteen-year minimum prison
sentence if the defendant has three prior convictions “for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another.” Id. Mr. Mathews’
presentence report recited that he previously had been
convicted under Illinois law of (1) robbery; (2) aggravated
battery; and (3) unlawful possession of a weapon by a felon.
Mr. Mathews conceded that his robbery and aggravated
battery convictions could be counted as two of the three
prior offenses necessary for an ACCA sentence, but he
objected to the use of his Illinois unlawful possession
conviction on the ground that it was not a “violent felony”
within the meaning of the ACCA. In order to qualify as
“violent” under the statute, the prior felony must have had
“as an element the use, attempted use, or threatened use
of physical force against the person of another.” Id.
§ 924(e)(2)(B)(i). Alternatively, a felony may qualify as
violent under the ACCA if it “involves conduct that pres-
ents a serious potential risk of physical injury to another.”
Id. § 924(e)(2)(B)(ii).
No. 05-1665 3
Mr. Mathews’ Illinois unlawful possession conviction was
the result of a guilty plea in which he had admitted
to violating an Illinois statute that prohibits both simple
weapon possession and possession with intent to use,
see 720 ILCS 5/24-1.1 et seq. To determine which variety
of the offense Mr. Mathews had committed, the district
court looked beyond the fact of Mr. Mathews’ conviction
and examined the indictment from the underlying Illi-
nois prosecution. That document charged that Mr. Mathews
had “knowingly possessed on his person a dangerous knife
with the intent to use that knife unlawfully against Leatrice
Jones.” Tr. at 189 (internal quotation marks omitted). This
reference to the indictment made clear, in the district court’s
view, that Mr. Mathews’ prior conviction satisfied the
ACCA’s definition of a violent felony. Over Mr. Mathews’
objection, the district court then sentenced him to 15 years’
imprisonment, the ACCA’s mandatory minimum.1 The
court also imposed a five-year term of supervised release, to
follow the prison sentence, and a $100 special assessment.
In his appeal to this court, Mr. Mathews seeks our re-
view of the district court’s ACCA ruling.2 In his initial brief,
he contended that the district court had relied improperly
upon the state court’s docket entry that described the facts
of the underlying conviction. In its answering brief, the
Government initially conceded error; it expressed the view
that, although the district court had relied essentially on the
1
Had Mr. Mathews not been classified as an Armed Career
Criminal, his sentencing guideline range would have been 51-63
months.
2
Mr. Mathews also raised initially the denial of his motion to
suppress. He later withdrew that issue; accordingly, there is
no need to address it in this opinion.
4 No. 05-1665
wording of the indictment rather than on the docket entry
in making its determination, the court nevertheless had
erred by examining, through reference to the indictment, the
manner in which Mr. Mathews had committed the offense.
After considering the initial positions of both parties, we
invited the Attorney General of Illinois to file a brief as
amicus curiae. The Attorney General accepted our invitation,3
and, with the permission of the court, both the defendant
and the Government have filed supplemental briefs.4 With
the benefit of these submissions, we then heard oral argu-
ment and took the case under advisement.
II
DISCUSSION
A.
We begin by setting forth the federal statutory scheme
at the heart of this case. Section 922(g) of the criminal code,
commonly referred to as the felon-in-possession statute,
provides in pertinent part:
It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year
...
3
The court expresses its thanks to the Attorney General for her
valuable assistance.
4
In its supplemental brief, the Government withdrew its
earlier concession of error.
No. 05-1665 5
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammu-
nition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.
18 U.S.C. § 922(g).
The federal criminal code also contains a specific penalty
provision applicable to this section. First enacted in 1984,
this provision is known popularly as the Armed Career
Criminal Act, the name under which it was first introduced,
see Pub. L. 98-473, ch. 18, 98 Stat. 2185 (1984). As applicable
to the case before us, the provision reads:
In the case of a person who violates section 922(g) of
this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, com-
mitted on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sen-
tence of, or grant a probationary sentence to, such
person with respect to the conviction under section
922(g).
18 U.S.C. § 924(e)(1).
In turn, Congress has defined certain specific terms in this
penalty provision, including the one pertinent to our present
inquiry:
[T]he term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
6 No. 05-1665
punishable by imprisonment for such term if committed
by an adult, that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another;
Id. § 924(e)(2)(B).
As this court’s recent decision in United States v. Sperberg,
432 F.3d 706 (7th Cir. 2006), makes clear, the task of deter-
mining whether a particular state conviction meets this
statutory definition has not been an easy one for the federal
courts. In that case, for example, we described the inter-
circuit disagreement that has arisen over how to classify
prior convictions for felony drunk driving under the ACCA.
See id. There are of course a significant number of cases in
which a straightforward examination of the defendant’s
prior judgment of conviction, in light of the plain language
of the corresponding state statute, makes clear whether his
conviction falls within the ambit of a “violent felony” under
the federal penalty provision.5 There are, however, a
significant number of instances in which a defendant is
convicted under a state statute that encompasses multiple
5
See, e.g., United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005)
(discussing an Indiana robbery statute with elements that
invariably qualified it as a violent felony); United States v. Wallace,
326 F.3d 881, 887 (7th Cir. 2003) (examining Illinois’ unlawful
restraint statute that defined the offense with only one set of
elements).
No. 05-1665 7
categories of offense conduct, some of which would consti-
tute “violent” felonies, and some of which clearly would not
fall within the federal statutory definition.6 Cases involving
“divisible” criminal statutes such as these have posed
serious and at times intractable problems for practicing
lawyers and judges, and the efforts of the federal courts to
deal with them has required the intervention of the United
States Supreme Court on several occasions.7
6
See, e.g., United States v. Sperberg, 432 F.3d 706, 708 (7th Cir.
2005) (dealing with a Wisconsin statute that criminalized two
kinds of threat: a threat to injure another and a threat to accuse
another falsely of a crime).
7
The first case to address this issue was Taylor v. United States,
495 U.S. 575 (1990), in which the Supreme Court considered
whether a defendant’s prior conviction for burglary under
state law was a qualifying “violent felony.” The ACCA specifi-
cally lists “burglary” as a violent crime but does not define it,
see 18 U.S.C. § 924(e)(2)(B)(ii), giving rise to the question of
whether Congress intended burglary to have a uniform defini-
tion, or whether burglary was burglary whenever the state had
labeled it as such. The Court opted for a uniform or “generic”
definition, holding that burglary is “any crime, regardless of its
exact definition or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Taylor, 495 U.S. at 599. The Court
thus announced a “categorical approach” to qualifying predicate
felonies under the ACCA. Under this approach, a sentencing
court must look only to the statutory definitions of prior offenses
to determine whether they contain the elements outlined in the
uniform ACCA definitions. Id. at 601. The Court then went on to
recognize that, when a single statutory provision defines several
different crimes (such as, to use the Court’s example in Taylor, a
single statutory provision that declares it a crime to break into
(continued...)
8 No. 05-1665
Decisions of the Supreme Court now have made clear
that, when sentencing a defendant under the ACCA, a
district court generally must use “a formal categorical
approach, looking only to the statutory definitions of the
prior offenses, and not to the particular facts underlying
those convictions.” Taylor v. United States, 495 U.S. 575,
600 (1990); see also Shepard v. United States, 544 U.S. 13, 16
(2005). These decisions also establish that, for state statutes
that are “divisible” in the way we just have described,
a sentencing court may examine a limited range of addi-
tional material in order to determine which portion of the
state statute the defendant violated. Shepard, 544 U.S. at 17;
Taylor, 495 U.S. at 599-600. As the Court held most recently
in Shepard, this material is limited to “the terms of the
charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.” Shepard, 544 U.S. at 26;8 see United States v.
7
(...continued)
and enter, “any booth or tent, or any boat or vessel, or railroad
car”), a court may have to look at the indictment or at the jury
instructions to see which of the several different statutory crimes
(one involving a tent, a railroad car, or a boat) was at issue. Id. at
599 (internal quotation marks omitted). This inquiry is necessary
because, under the ACCA’s generic definition of burglary,
breaking into a tent would be “violent” while breaking into a car
would not.
8
In Shepard, the defendant’s prior conviction arose from his plea
of guilty to violating a Massachusetts burglary statute
that criminalized trespassing not only into buildings and
structures but also into boats and motor vehicles. Shepard v.
United States, 544 U.S. 13, 16 (2005). Because that statute included
(continued...)
No. 05-1665 9
Howze, 343 F.3d 919, 921 (7th Cir. 2003).
B.
With the governing federal statutory scheme now before
us, we turn to the Illinois statute at issue in this case. The
Illinois unlawful possession statute, under which Mr.
Mathews was convicted, reads as follows:
It is unlawful for a person to knowingly possess on or
about his person or on his land or in his own abode or
fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm
8
(...continued)
crimes that went beyond what Taylor characterized as a generic
burglary, the district court declined to classify the defendant’s
prior conviction as a violent felony under the ACCA. The First
Circuit reversed, holding that sentencing courts may look to
police reports to determine whether there was “sufficiently
reliable evidence that the government and the defendant
shared the belief that the defendant was pleading guilty to a
generically violent crime.” Id. at 18 (internal quotation marks
omitted). Reversing, the Supreme Court held that a court
“determining the character of an admitted burglary is generally
limited to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant
assented.” Id. at 16. This limitation preserves the categorical
approach of Taylor and ensures that a defendant
was “necessarily” convicted of a generic burglary. Id. at 24. It also
restricts the trial court from engaging in factfinding about the
particulars of a defendant’s conduct that are “too much like the
findings” deemed impermissible under Apprendi v. New Jersey,
530 U.S. 466 (2000), and its progeny. Id. at 25.
10 No. 05-1665
ammunition if the person has been convicted of a felony
under the laws of this State or any other jurisdiction. . . .
720 ILCS 5/24-1.1(a). The code section referenced in this
provision contains, along with several exceptions not
pertinent to our present inquiry, a lengthy list of items that
a convicted felon may not lawfully carry or possess in
Illinois. The first subsection provides some examples:
any bludgeon, black-jack, slung-shot, sand-club,
sand-bag, metal knuckles, throwing star, or any knife,
commonly referred to as a switchblade knife, which has
a blade that opens automatically by hand pressure
applied to a button, spring or other device in the handle
of the knife, or a ballistic knife, which is a device that
propels a knifelike blade as a projectile by means of a
coil spring, elastic material or compressed gas; . . . .
Id. 5/24-1(a)(1). The next subsection of the statute, 5/24-
1(a)(2), criminalizes the possession of several other types of
weapons but, unlike the previous subsection, adds an
additional element of conviction:
(a) A person commits the offense of unlawful use of
weapons when he knowingly:
...
(2) Carries or possesses with intent to use the same
unlawfully against another, a dagger, dirk, billy,
dangerous knife, razor, stiletto, broken bottle or
other piece of glass, stun gun or taser or any other
dangerous or deadly weapon or instrument of like
character; . . . .
Id. 5/24-1(a)(2) (emphasis added).
The Illinois unlawful possession statute thus addresses
two situations. Subsection (a)(1) proscribes the possession of
weapons, such as guns, bludgeons and black-jacks, that are
No. 05-1665 11
designed principally to inflict harm; consequently, a felon
may be convicted simply for possessing them. By contrast,
the objects covered in subsection (a)(2) can be used com-
monly for non-violent purposes as well as for violent means.
For objects listed in this subsection, the statute therefore
requires proof that the felon possessed the object “with the
intent to use the same unlawfully against another.” Id.
Without this additional element, a convicted felon could be
returned to prison for something as innocent as carving a
turkey or chopping wood. See People v. Crawford, 495 N.E.2d
1025, 1029 (Ill. App. Ct. 1986).
This reading of the Illinois statutory scheme, which seems
evident from the very structure of the statute, has been
followed by the Illinois courts. In Crawford, the Appellate
Court of Illinois, noting explicitly that it was “construing the
statutes together and considering all the relevant parts,” id.,
arrived at this same interpretation of the statutory scheme.
Similarly, in People v. Gill, 713 N.E.2d 124, 129 (Ill. App. Ct.
1999), the court construed the same statutory provision as
requiring that the state prove that the defendant possessed
the weapon (a hatchet) with the intent to use it unlawfully.
Furthermore, on at least two occasions, the Supreme Court
of Illinois has noted approvingly the holding in Crawford
that a charge premised on the possession of an item listed in
Section 24-1(a)(2) must include an intent to use the item in
an unlawful manner. See People v. Farmer, 650 N.E.2d 1006,
1011 (Ill. 1995); People v. Ryan, 509 N.E.2d 1001, 1002 (Ill.
1987); see also People v. Sullivan, 263 N.E.2d 38, 39-40 (Ill.
1970) (holding that “as to a hunting knife proof of intent to
use it unlawfully against another is essential”).
12 No. 05-1665
C.
Here, the district court was faced with a record that
simply recited Mr. Mathews’ Illinois conviction for possess-
ing a weapon as a felon but did not designate, with any
particularity, the type of weapon that he had possessed
or the subsection that he had violated. In light of the
differences, in terms of intent and conduct, between the
statutory subsections at issue, a categorical determination
whether Mr. Mathews committed a violent felony would
be inevitably inconclusive employing only this limited set of
information. Under these circumstances, therefore, Shepard
and Taylor allow the sentencing court to “peek at the
indictment and equivalent documents to see which compo-
nent of the state offense the conviction entails.” Abdelqadar
v. Gonzales, 413 F.3d 668, 672 (7th Cir. 2005). Here, the
charging document examined by the district court indicated
that Mr. Mathews’ prior state conviction was for possession
of a knife. Because a knife is an object that the Illinois statute
does not consider inherently violent, the state indictment
further charged the necessary intent-to-use element, stating
that Mr. Mathews intended “to use that knife unlawfully
against Leatrice Jones.” Tr. at 189. This language specifically
alleged an element of the offense that was necessary to
determine which portion of the Illinois statute Mr. Mathews
had violated. The district court therefore did not err in
relying on this additional material to determine whether Mr.
Mathews’ prior conviction was for a “violent felony.”
D.
Mr. Mathews contends nevertheless that his intent-based
violation of the Illinois unlawful possession statute
should not be considered categorically violent under the
No. 05-1665 13
ACCA.9 He focuses first on prong one of the ACCA’s
“violent felony” definition. That aspect of the statute,
subsection (e)(2)(B)(i), classifies as violent any crime that
“has as an element the use, attempted use, or threatened use
of physical force against the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). According to Mr. Mathews, the “intent to
use” element of the Illinois statute is fundamentally differ-
ent from the elements that the ACCA employs to test for
violence, namely the “use, attempted use, or threatened use
of physical force.” Id. As he reads the ACCA, its term “use”
connotes an actus reus element, while the “intent to use”
element found in the Illinois statute signifies only an
element of specific intent or mens rea. This argument does
find some support in the Supreme Court’s decision in Bailey
v. United States, 516 U.S. 137, 144-49 (1995). There, the Court
suggested that the word “use” in a criminal statute necessar-
ily implies something more than inert possession and
requires action on the part of the accused. See id. (reasoning
that the active use of a gun is a crime of violence in a way
that mere possession of it, even if criminal, is not).
Fortunately, however, we need not resolve this difficult
issue. Subsection (i), the provision just discussed, is only one
of the ACCA’s two alternative definitions of “violent
felony.” The other definition classifies as violent any crime
that is:
burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another . . . .
9
Whether a crime is categorically violent is a question of
statutory interpretation that we review de novo. See United States
v. Fife, 81 F.3d 62, 63 (7th Cir. 1996).
14 No. 05-1665
18 U.S.C. § 924(e)(2)(B)(ii). Generally speaking, subsec-
tions (i) and (ii) work in tandem, with subsection (ii)
supplementing the scope of the “violent felony” definition
in two respects. First, subsection (ii) lists four specific
categories of property crimes, each of which Congress
believed to involve conduct posing a particularly serious
“risk of injury to another,” even though violence may not be
an element of the particular offense. Id. Second, through its
final “otherwise” provision, the subsection reaches other
statutory and common law offenses that, although not listed
specifically in subsection (ii), generally involve a similarly
serious risk. Id.
The subsection’s legislative history does not offer any
particular examples of offenses that Congress intended the
statute to cover in the “otherwise” clause. Our case law,
however, provides some helpful illustrations. In United
States v. Franklin, 302 F.3d 722, 725 (7th Cir. 2002), we held
that the crime of escape is a violent felony under the
“otherwise” clause of subsection (e)(2)(B)(ii) because escape
involves a “serious potential risk of physical injury to
another,” 18 U.S.C. § 924(e)(2)(B)(ii). We noted that “every
escape scenario is a powder keg, which may or may not
explode into violence and result in physical injury to
someone at any given time, but which always has the
serious potential to do so.” 302 F.3d at 724 (internal quotation
marks and alteration omitted; emphasis in original). Simi-
larly, in Howze, we classified fleeing from an officer as a
crime of violence. Analyzing the offense under Taylor’s
categorical approach, we held that, “[b]ecause the [ACCA]
calls for an assessment of risk rather than actual outcomes,
and the risk that someone will get hurt during recapture (or
flight to avoid recapture) does not depend on how the
offender got away in the first place, all escapes must be
classified as crimes of violence.” Howze, 343 F.3d at 922.
No. 05-1665 15
In the face of this precedent, Mr. Mathews maintains that
his unlawful possession offense should not be deemed
categorically violent. This is because, according to Mr.
Mathews, there are ways to commit the offense in a non-
violent manner. As an example, Mr. Mathews asks us to
imagine a knife-carrying assailant whose plans to use
the knife against someone are thwarted before he reaches
the victim to inflict harm. In this situation, Mr. Mathews
points out, there is no actual violence. However, in postulat-
ing a hypothetically non-violent scenario, Mr. Mathews
misunderstands the basic inquiry under subsection
(e)(2)(B)(ii)’s “otherwise” clause. By speaking of “serious
potential risk,” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added),
the statute deals in probabilities of injury, not certainties.
Thus, as we have observed, the proper benchmark under the
“otherwise” clause is “the possibility of violent confronta-
tion, not whether one can postulate a nonconfrontational
hypothetical scenario.” United States v. Davis, 16 F.3d 212,
217 (7th Cir. 1994); see also Howze, 343 F.3d at 923-24.
Possessing a weapon as a felon “with intent to use the
same unlawfully against another,” 720 ILCS 5/24-1(a)(2),
involves a very significant probability of physical injury to a
victim. Indeed, the structure of the Illinois unlawful posses-
sion statute supports this conclusion. By criminalizing the
use of certain weapons, like hunting knives and hatchets,
only when violent intentions exist, the Illinois legislature
has recognized the potential for injury when these objects
are used with intent to inflict harm. As a real-world illustra-
tion of this danger, one need only review the facts of several
Illinois cases dealing with prosecutions under the intent-
based section of the unlawful possession statute. See, e.g., In
re W.D., 551 N.E.2d 357, 362 (Ill. App. Ct. 1990) (discussing
a defendant prosecuted under Section 24-1(a)(2) for bringing
a knife with an eight-inch blade to a fistfight); Gill, 713
16 No. 05-1665
N.E.2d at 129 (“[The] defendant entered the school grounds,
waved the hatchet around, struck the cement post several
times and stated, ‘I’m going to kill, kill all of you if I have
to.’ ”); People v. Vaughn, 483 N.E.2d 417, 418-19 (Ill. App. Ct.
1985) (discussing a defendant prosecuted under Section 24-
1(a)(2) for approaching a police officer and shouting
profanity-laden threats while carrying a thirteen-inch
butcher knife). Given the risk of injury inherent in the
situations addressed by Illinois’ unlawful possession statute,
we hold that its “intent to use” offense, 720 ILCS 5/24-
1(a)(2), is categorically a “violent felony” for purposes of 18
U.S.C. § 924(e).
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-7-06